Mathebula and Others v Safety and Security Sectoral Bargaining Counsel and Others (JR283/21) [2024] ZALCJHB 524 (12 November 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR283/21

In the matter between:

SIPHO

MATHEBULA

First Applicant

NYAKALLO

SAMBUTANA MONATISA

Second Applicant

ZOLEKA

CHARMAINE HLATSWAYO

Third Applicant

and

SAFETY

AND SECURITY SECTORAL BARGAINING

COUNSEL

First Respondent

L NAIDOO N.O.

Second Respondent

SOUTH

AFRICAN POLICE SERVICE

Third Respondent

PROVINCIAL COMMISSIONER: GAUTENG

Fourth Respondent

Heard: 12 November 2024

Delivered: 12 November 2024

EX TEMPORE

JUDGMENT

PHEHANE, J

Introduction

[1] This applicants, legally represented, launch a review application to review and set aside an arbitration award by the second respondent dated 7 December 2020, received on 9 December 2020 by the applicants’ trade union that represented them in the arbitration proceedings. The second respondent found that the dismissal of the applicants from the employ of the third respondent for misconduct on 21 December 2017 was both procedurally and substantively fair.

[2] The review application was filed out of time. The notice of motion does not contain a prayer seeking condonation for the late filing of the review application.

[3] The first applicant is the deponent to the founding affidavit that accompanies the notice of motion. He avers that he is “competent” to depose to the founding affidavit on behalf of the second and third applicants. Although confirmatory affidavits are filed by the second and third applicants, they are not mentioned in the founding affidavit as annexures thereto. To avoid technicalities, I accept that the intention of the confirmatory affidavits filed, is to confirm the content of the founding affidavit – this is what the second and third applicants state in their confirmatory affidavits in very general terms.

[4] The applicants have inserted in paragraph 10 of their founding affidavit, a heading entitled “Condonation”. Subparagraphs 10.1 to 10.10 of the founding affidavit contain the applicants’ explanation for the delay, some explained by the deponent as “superior forces”, averments relating to the extent of the delay and prospects of success on review, which the applicants contend are good.

[5] The review application is opposed by the third and fourth respondents.

[6] The applicants take issue in paragraph 27 of their heads of argument with the answering affidavit being filed out of time sans an application for condonation. However, it appears that no objection was filed in terms of the provisions of item 11.4.2 of the now repealed Practice Manual of this Court[1] which provided that there was not need to apply for condonation if an opposing or replying affidavit was filed out of time unless the party upon whom the affidavits are served, delivers a notice of objection within 10 days of the receipt of the affidavits, after which period, the right to object lapses. In the premises of no notice of objection being delivered by the applicant, there is no need for the third and fourth respondents to apply for condonation for the late filing of their answering affidavit.

Condonation

Legal framework

[7] Section 145(1) of the Labour Relations Act[2] (LRA) provides that any party who alleges a defect in any arbitration proceedings may apply to this Court for an order setting aside the arbitration award within 6 weeks of the date that the award was served on that party. Section 145(1A) provides that this Court, may, on good cause shown, condone the late filing of a review application.

[8] The test to succeed for the grant of condonation is trite.[3] Condonation is not for the mere asking. An applicant seeking condonation must show good cause for the delay. Put differently, an

applicant must proffer a reasonable explanation for the delay and a detailed explanation must be provided for the entire period of delay.

[9] The Constitutional Court has held that when determining reasonable delay, regard must be had to the ethos of the LRA, being expeditious dispute resolution.[4]

Delay and reasons

[10] The applicants aver that the delay is 26 days late. This is incorrect.

[11] The notice of motion and founding affidavit were delivered on 10 March 2021. The extent of delay is thus approximately seven weeks.

[12] The reason for the delay is that the applicant’s union that represented them in the arbitration proceedings closed for the December holidays after receiving the arbitration award on 9 December 2020. On 8 January 2021, the parents of the first applicant passed away due to COVID-19 related complications. The first applicant thereafter was quarantined for 10 days, during which period, he tried to contact the union but his calls went unanswered. He consulted with his attorney twice, on 21 and 26 January 2021.[5] On the second occasion, that is, on 26 January 2021, he consulted with his attorney together with the second and third applicants.

[13] The first applicant states that the period of delay is not excessive, as he “instituted this application timeously after being able to consult and sign the necessary documents”. The founding affidavit was deposed to on 10 February 2021, however, the application was only launched in this Court one month later, on 10 March 2021. There is no explanation for this delay of one month.

[14] In addition, there is no explanation when the union’s offices closed and re-opened after the December holidays. There is no detailed explanation for the entire period of delay during the period between 10 December 2020 to 10 March 2021 when this application was launched. Only some periods are accounted for. This is not sufficient.

[15] The reason proffered that the union’s offices closed for December holidays and calls by the first applicant to the union went unanswered is not a reasonable explanation for the delay. It is trite that an applicant cannot hide behind the negligence of its representative and this does not constitute just cause for delay.[6]

[16] No explanation is placed before this Court whatsoever by the second and third applicants for the delay, other than to state that the union’s offices were closed for the December holidays and that they consulted with their attorneys together with the first applicant on 26 January 2021, if regard is had to their confirmatory affidavits. It remains that the second and third applicants have not proffered a sound and detailed explanation for the full period of delay.

Prospects of success

[17] The applicants aver that they have good prospects of success on review. However, in circumstances as in the present case where there is no appreciation for the extent of the delay of seven weeks and where the full extent of the delay is unexplained, there can be no reasonable explanation for the delay. And, where there is no reasonable explanation for the delay, the prospects are immaterial.[7]

Prejudice

[18] The applicants aver that there is no prejudice to the respondents should condonation be granted, without any elaboration. The prejudice to the respondents is obvious. Bearing in mind that disputes are to be resolved expeditiously, the third and fourth respondents state in their answering affidavit that the applicants had failed to comply with the now repealed Rules of this Court[8] relating to the filing of the record, with the consequence that the review application was deemed withdrawn. That the review application

was at a point, deemed withdrawn and followed by an application for its reinstatement, which was granted by this Court, demonstrates the prejudice to the respondents in that they have a competing interest for finality of this dispute.

Conclusion

[19] In the absence of a prayer in the notice of motion seeking condonation for the late filing of the review application, no proper

condonation application is before this Court. However, I have considered the merits of the condonation sought as set out in the

founding affidavit and the opposition thereto by the third and fourth respondents, which in summary, is that no good cause is shown by the applicants for the delay. The applicants’ representative conceded that no sufficient explanation is provided by the applicants for the delay and that the papers are poorly drafted.

[20] The applicants have failed to discharge the onus on them to show good cause for the delay.

[21] In view of the afore-going, the condonation application cannot succeed.

[22] In the premises, the following order is made:

Order

1. Condonation for the late filing of the review application is refused with no order as to costs.

M. T. M. Phehane

Judge of the Labour Court of South Africa

For the applicants: Adv. Matlatle

Instructed by: Richardsithi Attorneys

For the third and fourth respondents: Mrs Ngcobo, Office of the State Attorney.

[1] Repealed by the Rules Regulating the Conduct of the Proceedings of the Labour Court published under GN4775 in GG 50608 of 3 May 2024.

[2] Act 66 of 1995, as amended.

[3] Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) (Melane).

[4] Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2016) 37 ILJ 313 (CC).

[5] It appears that the reference to 2020 in paragraph 10.5 of the founding affidavit on p A12 is an error.

[6] Salojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A).

[7] See: Melane; see also: NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC).

[8] fn 1 above.